Thomas P. Chotta v. James B. Peake
22 Vet. App. 80, 2008 U.S. Vet. App. LEXIS 260, 2008 WL 647383 (2008)
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Rule of Law:
When determining a disability rating for a historical period after revising a prior denial, the Secretary's duty to assist requires a three-step process: gathering all lay and medical evidence, assessing the rating based on that evidence (including competent lay testimony of observable symptoms), and, if necessary, obtaining a retrospective medical opinion when the evidence raises a medical question.
Facts:
- Thomas P. Chotta served in the U.S. Army from October 1941 to September 1945.
- In 1946, Chotta was diagnosed with psychoneurosis but had no medical records related to his mental condition between 1948 and 1997.
- Chotta worked full-time for 39 years until 1986, when he stated he was forced to quit his job because his nerves 'became so bad.'
- Chotta's sister submitted a statement reporting that after his service, he was unable to sleep, would run out of the house screaming upon hearing a train, and was short-tempered.
- In July 1998, a private physician diagnosed Chotta with Post-Traumatic Stress Disorder (PTSD).
Procedural Posture:
- In 1946 and 1947, the VA regional office (RO), a court of first instance, denied Thomas P. Chotta's claims for a nervous condition.
- In 1997, Chotta sought to reopen his claim to include PTSD, which the RO granted in 1999 with a 50% disability rating effective from 1997.
- Chotta challenged the effective date, and after an appeal to the Board of Veterans' Appeals (Board), an intermediate appellate body, and then to the U.S. Court of Appeals for Veterans Claims, the parties stipulated that service connection for PTSD would be granted effective from 1947.
- The case was remanded to the RO to determine the disability rating for the period from 1947 onward.
- In 2003, the RO assigned a 50% rating for PTSD from 1947 to 1999. Chotta, as the claimant, filed a Notice of Disagreement and appealed to the Board.
- In October 2005, the Board affirmed the RO's decision, finding the lay evidence not competent to establish the condition's severity.
- Chotta, as appellant, appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims.
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Issue:
Does the Secretary of Veterans Affairs' duty to assist require the Board of Veterans' Appeals to consider competent lay testimony about a veteran's observable symptoms and potentially obtain a retrospective medical opinion when determining a disability rating for a historical period that lacks contemporaneous medical records?
Opinions:
Majority - Lance, Judge
Yes. The Secretary's duty to assist requires the Board to properly consider all competent evidence, including lay testimony, and may require obtaining a retrospective medical opinion. The court established a three-part framework for the VA's duty to assist in retrospective rating cases. First, the Secretary must gather all existing medical and lay evidence. Second, the Board must assess whether a rating can be assigned based on this evidence, giving proper weight to lay testimony about observable symptoms. The Board erred by dismissing lay statements from Chotta and his family, as laypersons are competent to testify about firsthand observations of visible symptoms and social impairment. Third, if the existing evidence is insufficient to assign a rating but suggests a higher rating may be warranted, the VA must obtain a medical opinion, which may include a retrospective one, to resolve medical questions raised by the evidence.
Analysis:
This decision clarifies the scope of the VA's statutory "duty to assist" in cases involving long historical periods without medical evidence. It establishes a clear, three-step analytical framework that adjudicators must follow, significantly elevating the role of lay evidence in the rating process. By requiring the VA to consider obtaining retrospective medical opinions based on competent lay evidence, the ruling provides a pathway for veterans to substantiate claims that would otherwise fail due to a lack of contemporaneous medical records, affecting numerous similar historical claims.
